Log Creek, LLC. v. Kessler, Case No. 4:09cv401-RH/WCS

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtROBERT L. HINKLE
Citation717 F.Supp.2d 1239
Docket NumberCase No. 4:09cv401-RH/WCS
Decision Date03 June 2010
PartiesLOG CREEK, L.L.C., et al., Plaintiffs, v. Howard KESSLER, et al., Defendants.
717 F.Supp.2d 1239

LOG CREEK, L.L.C., et al., Plaintiffs,
v.
Howard KESSLER, et al., Defendants.


Case No. 4:09cv401-RH/WCS.

United States District Court,
N.D. Florida,
Tallahassee Division.


June 3, 2010.

717 F.Supp.2d 1240

Ari Jonathan Glazer, Moskowitz Mandell Salim Etc., Fort Lauderdale, FL, for Plaintiffs.

Carly J. Schrader, Gregory Thomas Stewart, Harry F. Chiles, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Howard Kessler, Wakulla County FL.

Catherine Barbara Chapman, Mary Katherine Simpson, Guilday Tucker Schwartz Etc, Tallahassee, FL, for James E. Hennessey, M. Kathryn Gibson.

ORDER DISMISSING THE COMPLAINT IN PART

ROBERT L. HINKLE, District Judge.

This case arises from a land-use dispute in Wakulla County, Florida. The plaintiffs are out-of-town developers. The defendants are the county, the chair of the county commission, and two owners of adjoining land. The plaintiffs say the county has violated the Equal Protection Clause by treating the plaintiffs differently from others, has violated the plaintiffs' right to procedural due process, and has taken the plaintiffs' property without just compensation. The plaintiffs say the commission chair acted unconstitutionally by moving to rescind a permit and violated the Florida open-meeting law by conducting an improperly-noticed meeting. And one plaintiff says the commission chair and the adjoining-land owners defamed him by falsely asserting he had engaged in illegal financial transactions.

The defendants have moved to dismiss. This order upholds the equal-protection claims because the plaintiffs have adequately alleged that the county treated them differently from similarly-situated others without a basis. But the order dismisses the remaining claims. The procedural-due-process claim fails because due process was provided or at least available

717 F.Supp.2d 1241
at the plaintiffs' request. The taking claims will be dismissed on ripeness grounds because the plaintiffs have not sought and been denied just compensation. The claim based on the commission chair's motion to rescind a permit fails because of the absolute immunity that attaches to an action of that kind. The open-meeting claim fails because the violation-if it was a violation-was an isolated event that occurred in unusual circumstances; there is no reasonable likelihood that a violation will recur, and thus no basis for an injunction, the only substantive relief requested on this claim. Finally, the defamation claim, as now asserted, fails because the First Amendment bars a defamation claim of this kind absent an allegation of fault, and the plaintiff has disclaimed any allegation of fault.

I. Facts

As is proper on a motion to dismiss for failure to state a claim, this order accepts as true the complaint's factual allegations, though not its legal conclusions. See Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Wakulla County is an historically rural county in the Florida panhandle. The county has substantial wetlands and other environmentally sensitive lands. In recent years the county has seen substantial growth. It has adopted a comprehensive plan and land-use ordinances, including a wetlands ordinance. It has established a code-enforcement board.

The plaintiffs H. Collins Forman, Jr., and Miles Austin Forman are residents of Broward County. Broward is a predominantly urban county in south Florida.

The Formans organized the other four plaintiffs, all limited liability companies: Log Creek, L.L.C.; Muir Woods, L.L.C.; Big Bend, L.L.C.; and Spring Creek, L.L.C. Each limited liability company bought land in Wakulla County. Each has met difficulties in obtaining the permits or approvals needed to develop its land as it wishes.

According to the complaint, the county has treated the plaintiffs' land differently from other, similarly-situated land, without a basis. Thus, for example, the complaint alleges that the county has prohibited Log Creek from using 1.2 acres consisting of depressions and a wetlands buffer zone, while other landowners have been allowed to use similar property and have not been required to have a buffer zone around wetlands. The complaint identifies four of the landowners who have not been held to the same buffer-zone requirement: the defendants James E. Hennessey and Kathryn Gibson, who own property adjacent to Log Creek's; the defendant Howard Kessler, who is chair of the county commission; and Wakulla County itself. The complaint alleges that there are no differences in the land or attending circumstances that would provide a rational basis for the differential treatment.

Similarly, the complaint alleges that Muir Woods sought a zoning change that complied with all applicable requirements, was supported by the county staff, and was moving through the process without difficulty until Mr. Kessler acted to block it, including by moving to revoke a prior conditional use permit. The complaint alleges that Spring Creek and Big Bend sought comprehensive-plan amendments, that two other specifically-named landowners simultaneously sought similar amendments, that all the proposals garnered the required state approval and were initially supported by the county's staff, that the county approved the other landowners' applications, but that the county rejected Spring

717 F.Supp.2d 1242
Creek's and Big Bend's applications, without a rational basis.

The complaint alleges that the real reason for the differential treatment was animus directed at the plaintiffs. The complaint alleges that Mr. Hennessey unlawfully removed a fence that Log Creek built on its own property, and that Log Creek sued Mr. Hennessey and won. The complaint alleges that Mr. Hennessey and Ms. Gibson sent an email to Mr. Kessler and others untruthfully asserting that Miles Austin Forman had "been associated with a variety of suspect and, on occasion, illegal financial dealings in South Florida." Compl. (document 1-2) at ¶ 54. The complaint alleges that Mr. Kessler forwarded the email to others, including the county manager and at least one private citizen, who participated in efforts to block the plaintiffs' projects. The complaint alleges that the email "poisoned the well," with the result that the plaintiffs have been treated differently from others who are similarly situated in all relevant respects.

II. The Claims and the Motions To Dismiss

The complaint includes nine counts. All but count eight-the open-meeting claim-seek an award of damages. Count eight seeks injunctive relief. The complaint also seeks an award of costs and attorney's fees.

In count one, Log Creek sues the county under 42 U.S.C. § 1983 and the Equal Protection Clause. The assertion is that Log Creek is a class of one and that the county has selectively enforced the wetlands ordinance against it.

In count two, Log Creek sues the county under § 1983 for denying procedural due process in the wetlands-ordinance enforcement proceeding that resulted in the order prohibiting Log Creek from using 1.2 acres of its property.

In count three, Log Creek sues the county under § 1983 for taking its property-the 1.2 acres and perhaps the entire parcel-without just compensation.

In count four, Muir Woods sues Mr. Kessler under § 1983 for moving to rescind Muir Woods's conditional use permit, thus interfering with its use of its property.

In count five, Spring Creek, and in count six, Big Bend, sue the county under § 1983 and the Equal Protection Clause for denying the proposed comprehensive-plan amendments.

In count seven, all six plaintiffs sue the county under § 1983 for taking their property-their business reputation and goodwill-without just compensation.

In count eight, Log Creek sues Mr. Kessler for injunctive relief as a result of violating § 286.011, Florida Statutes, the open-meeting law.

In count nine, Miles Austin Forman sues Mr. Kessler, Mr. Hennessey, and Ms. Gibson for defamation-the publication of the email falsely asserting, among other things, that Mr. Forman had engaged in illegal financial transactions.

The defendants have moved to dismiss each count for failure to state a claim on which relief can be granted.

III. The Merits

For convenience, this order addresses the plaintiffs' claims not count-by-count but in groups based on the controlling issues.

A. Counts One, Five, and Six: Equal Protection

Counts one, five, and six assert "class of one" equal-protection claims against the county. Count one asserts that the county selectively enforced the wetlands ordinance against Log Creek, a class of one. Counts five and six assert that the county

717 F.Supp.2d 1243
selectively enforced the laws governing comprehensive-plan amendments, also against a class of one-Spring Creek in count five, and Big Bend in count six.

The Supreme Court has recognized that "the Equal Protection Clause is implicated in 'class of one' claims 'where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.' " Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir.2006) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam)).

A plaintiff can assert a class-of-one claim based on a government's selective enforcement of otherwise-valid provisions. To state a claim for selective enforcement, a plaintiff must allege that (1) it was treated differently from similarly situated others and (2) the defendant unequally applied a facially neutral statute or ordinance for the purpose of discriminating against the plaintiff. Id. at 1314 (citing Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir.1996)).

Counts one, five, and six are sufficient under these standards. Each alleges differential treatment without a basis, and each alleges facts plausibly supporting the assertion that the real reason...

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9 practice notes
  • Douglas v. N.Y. State Adirondack Park Agency, No. 8:10–CV–0299 (GTS/RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 11, 2012
    ...against plaintiff, was protected from liability as a matter of law by doctrine of absolute immunity); Log Creek, LLC v. Kessler, 717 F.Supp.2d 1239, 1244 (N.D.Fla.2010) (holding that chair of county commission, when he moved to revoke a conditional-use permit to a developer in a county comm......
  • 33 Seminary LLC v. City of Binghamton, No. 3:11–CV–1300 (MAD/DEP).
    • United States
    • U.S. District Court — Northern District of New York
    • April 18, 2012
    ...complaint's factual allegations. The factual dispute cannot properly be resolved on a motion to dismiss.” Log Creek, LLC. v. Kessler, 717 F.Supp.2d 1239, 1243 (N.D.Fla.2010). With regard to the second element of a class of one claim, plaintiffs must adequately plead that any differential tr......
  • Johnson v. the City of Prichard, Civil Action No. 08–0572–CG–M.
    • United States
    • U.S. District Court — Southern District of Alabama
    • February 11, 2011
    ...and contents of Espinosa's [bankruptcy] plan. This more than satisfied United's due process rights.”); Log Creek, LLC. v. Kessler, 717 F.Supp.2d 1239, 1245 (N.D.Fla.2010) (stating that where actual notice was provided, “minor defects” such as the notice not being sent by certified mail as r......
  • Lillemoe v. U.S. Dep't of Agric., Civil Action No. 15-cv-2047 (DLF)
    • United States
    • U.S. District Court — District of Columbia
    • September 25, 2018
    ...344 F.Supp.3d 229comparators both sought guarantees using the same rented trade flow structure. See Log Creek, L.L.C. v. Kessler , 717 F.Supp.2d 1239 (N.D. Fla. 2010) ("[A] plaintiff and a comparator need not share every characteristic to be similarly situated; they need only be alike in re......
  • Request a trial to view additional results
9 cases
  • Douglas v. N.Y. State Adirondack Park Agency, No. 8:10–CV–0299 (GTS/RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 11, 2012
    ...against plaintiff, was protected from liability as a matter of law by doctrine of absolute immunity); Log Creek, LLC v. Kessler, 717 F.Supp.2d 1239, 1244 (N.D.Fla.2010) (holding that chair of county commission, when he moved to revoke a conditional-use permit to a developer in a county comm......
  • 33 Seminary LLC v. City of Binghamton, No. 3:11–CV–1300 (MAD/DEP).
    • United States
    • U.S. District Court — Northern District of New York
    • April 18, 2012
    ...complaint's factual allegations. The factual dispute cannot properly be resolved on a motion to dismiss.” Log Creek, LLC. v. Kessler, 717 F.Supp.2d 1239, 1243 (N.D.Fla.2010). With regard to the second element of a class of one claim, plaintiffs must adequately plead that any differential tr......
  • Johnson v. the City of Prichard, Civil Action No. 08–0572–CG–M.
    • United States
    • U.S. District Court — Southern District of Alabama
    • February 11, 2011
    ...and contents of Espinosa's [bankruptcy] plan. This more than satisfied United's due process rights.”); Log Creek, LLC. v. Kessler, 717 F.Supp.2d 1239, 1245 (N.D.Fla.2010) (stating that where actual notice was provided, “minor defects” such as the notice not being sent by certified mail as r......
  • Lillemoe v. U.S. Dep't of Agric., Civil Action No. 15-cv-2047 (DLF)
    • United States
    • U.S. District Court — District of Columbia
    • September 25, 2018
    ...344 F.Supp.3d 229comparators both sought guarantees using the same rented trade flow structure. See Log Creek, L.L.C. v. Kessler , 717 F.Supp.2d 1239 (N.D. Fla. 2010) ("[A] plaintiff and a comparator need not share every characteristic to be similarly situated; they need only be alike in re......
  • Request a trial to view additional results

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